Changes proposed in next month’s referendums may have unintended consequences

Rite & Reason: In reality, the family is not always a happy haven, so individual rights need to be safeguarded

On December 7th 1972, the Irish people decided by referendum to remove articles 44.1.2 and 44.1.3 from the Constitution. These Articles referred to the “special position” of the Catholic Church and formally recognised the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland as well as the Jewish Congregations and other religious denominations existing in Ireland.

I recall a conversation some years later with my dentist, Joe Briscoe, a Jew and a son of TD Robert Briscoe, who had been lord myor of Dublin. He regretted the deletion of the article. Constitutional change can have unintended consequences.

The changes now proposed will change article 41 of the Constitution, which recognises the “Family as the natural, primary and fundamental unit group of Society”.

The “Family” is the “marriage-based” family. In a further section of article 41, the State pledges to guard with special care “the institution of marriage on which the Family is founded.” In the Irish version of the Constitution, the word used for “family” is “teaghlach” rather than “clann”. “Teaghlach” also means “household,” which has different implications.


The proposed 39th amendment to the Constitution will widen the concept of family from one based on marriage to include “other durable relationships.” The definition of “other durable relationships” is critical.

In 1995 the Government appointed TK Whitaker to chair a review group on the Constitution. The group was given a year to complete its work and included some of the best lawyers in the country. I, a non-lawyer, was also appointed to the group.

Among the issues tackled by the review group were the constitutional definition of the “family” and the reference to the role of women or mothers or other people within the home, issues with which the proposed referendums deal.

The review group listed a “multiplicity of different units which may be capable of being considered families”. It also raised a question that is central to the proposed referendums: “What duration of cohabitation (one month? six months? one year? five years?) should qualify for treatment as a family?”

If someone with or without children chooses not to marry, is it an interference with their personal rights to accord in effect legal status to their family unit?

The review group held that it might be necessary to leave to the judiciary on a case-by-case basis the definition of the forms of unit that might constitute a family within the meaning of any amended provision. Will taxation and property issues arise? How, for example, will the Succession Act be applied to “other durable relationships?”

It may be a somewhat privileged view to suggest that all mothers can choose between workforce and children. Many less-well-off women need to work to support children

The 40th amendment focuses on the role of women. Article 41.2.1 says that “the State recognises by her life within the home, woman gives to the State a support without which the common good cannot be achieved”. Article 41.2.2 says the State shall endeavour to ensure that mothers shall not be “obliged by economic necessity to engage in labour to the neglect of their duties in the home”.

It is proposed that article 41.2.1 and 41.2.2 will be deleted and replaced with a new article, 42.B, which states: “The State recognises the provision of care, by members of a family [or other enduring relationship?] to one another by reason of the bonds that exist among them, gives to society a support without which the common good cannot be achieved, and shall strive to support such provision.”

An unintended consequence of the 40th amendment may be to replace motherhood with the “provision of care”. But there is more to motherhood than the “provision of care”. For a start, a mother carries a baby in her womb for nine months. Then she might breastfeed for another nine months. These are not jobs that can be done by “carers” no matter how close the “bonds”.

It may be a somewhat middle-class view to suggest that all mothers can choose between workforce and children. Many less-well-off women need to work to support children.

Seamus Heaney’s poem When All the Others Were Away at Mass, voted best-loved poem of the last century, captures the role of his mother as they peel potatoes together: “I remembered her head bent towards my head,/Her breath in mine, our fluent dipping knives –/Never closer the whole rest of our lives.”

In 1937 there was, perhaps, a degree of idealisation of the family where the father was breadwinner and the mother cared for the children. But it must be remembered that the family is not always a happy haven, so individual rights need to be safeguarded.

Dr Finola Kennedy was a member of the 1995 Constitution Review Group, which had a membership of 15 people, drawn from various backgrounds